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Smith v. Fye

United States District Court, M.D. Georgia, Macon Division

January 31, 2018

BRAJA SMITH, Plaintiff,
v.
FYE, et al., Defendants.

          ORDER AND RECOMMENDATION

          Stephen Hyles UNITED STATES MAGISTRATE JUDGE

         This case is currently before the United States Magistrate Judge for preliminary screening as required by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). Plaintiff Braja Smith, an inmate confined at Macon State Prison, filed the above-captioned proceeding seeking relief under 42 U.S.C. § 1983 and requesting to proceed without prepayment of the Court's filing fees. Plaintiff also filed Motion for Preliminary Injunction. Mot. for Prelim. Inj., ECF No. 3.

         As discussed below, Plaintiff may proceed with his Eighth Amendment Claims against Defendants Fye, Spikes, McLaughlin, Kegler, Searcy, Jackson, Shirah, Ranson, Hamilton, Mims, Fowlkes, Johnson, Miller, and Toby. It is RECOMMENDED that Plaintiff's Eighth Amendment claims against Defendants Burkes and Perofsky be DISMISSED WITHOUT PRJEUDICE. It is further RECOMMENDED that Plaintiff's motion for preliminary injunction be DENIED.

         I. Motion to Proceed In Form Pauperis

         Plaintiff seeks leave to proceed in this action without prepaying the court's full filing fee. Because Plaintiff is a prisoner seeking relief from state officials, his request to proceed in forma pauperis is subject to the Prison Litigation Reform Act (“PLRA”).Pursuant to the PLRA, “in no event” shall a prisoner bring an in forma pauperis civil action or appeal if:

[he] has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). This is known as the “three strikes provision.” Under § 1915(g), a prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the grounds that it is frivolous or malicious or fails to state a claim. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). If a prisoner incurs three strikes, his ability to proceed in forma pauperis in federal court is greatly limited and leave may not be granted unless the prisoner shows an “imminent danger of serious physical injury.” Id.

         A review of court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database reveals that Plaintiff filed numerous federal lawsuits and appeals and at least three were dismissed as frivolous, malicious, or for failure to state a claim. See Smith v. Owens, 5:12-cv-00292-MTT (M.D. Ga. 2013) (dismissed for failure to exhaust administrative remedies); Smith v. Owens, 6:12-cv-00107-BAE-JEG (S.D. Ga. 2013) (dismissed for failure to state a claim); Smith v. Owens; 6:13-cv-00002-BAE-JEG (S.D. Ga. 2013) (dismissed for failure to state a claim).[1]

         Because of this, Plaintiff may not proceed in forma pauperis unless he can show that he qualifies for the “imminent danger” exception in § 1915(g). Medberry, 185 F.3d at 1193. To satisfy this provision a prisoner must allege facts that describe “an ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Sutton v. Dist. Attorney's Office, 334 F. App'x 278, 279 (11th Cir. 2009) (quoting Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004)). When reviewing a pro se prisoner's complaint for this purpose, the district court must accept all factual allegations in the complaint as true and view all allegations of imminent danger in Plaintiff's favor. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

         Construing Plaintiff allegations as true and with inferences drawn in his favor, Plaintiff has sufficiently alleged imminent danger at this stage of the proceedings. As discussed in more detail below, Plaintiff alleges that he suffered a series of life threatening infections requiring intensive care and surgery and resulting in debilitating complications. According to Plaintiff, his conditions has been made worse by Defendants past and present failure to provide him with proper and prescribed treatment, including forcing Plaintiff to reside in general population with open surgical wounds and without receiving proper dressings. He further alleges that he is being refused physical therapy prescribed by his physicians. The undersigned accepts these facts as true, as is required at this stage, and finds them sufficient to satisfy the imminent danger exception.

         Section 1915 allows the district courts to authorize the commencement of a civil action without prepayment of the normally-required fees upon a showing that the plaintiff is indigent and financially unable to pay the filing fee. 28 U.S.C. § 1915(b). Plaintiff's pauper's affidavit and trust account statement show that he is currently unable to prepay the Court's $350.00 filing fee. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is thus GRANTED. Plaintiff is, however, still obligated to pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. It is thus requested that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee.

         A. Directions to Plaintiff's Custodian

         It is hereby ORDERED the warden of the institution wherein Plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act, Plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further ORDERED that collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.

         B. Plaintiff's Obligations Upon Release

         Pursuant to provisions of the Prison Litigation Reform Act, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; Plaintiff shall continue to remit monthly payments as required by the Prison Litigation Reform Act. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit payments. Plaintiff's complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so.

         II. Preliminary Review of Plaintiff's Complaint

         A. Standard for ...


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